The correctness of the conclusion of this court touching bill of exceptions No. 1 is challenged *Page 621 upon the ground that it violates the statutory provisions restricting the communication between the trial judge and the jury. Reference is made to Arts. 667, 671 and 676, C. C. P., 1925. These statutes have been held restrictive to the extent of preventing the trial judge from entering the jury room while the jury is deliberating upon the case or to have private communication with them. See Osborne v. State, 93 Tex. Crim. 54. The bill of exceptions was not approved as written but was qualified in the following language:
"I was called to the door of the jury room, a few feet from the defendant, possibly 20 feet, and a few feet from the judge's stand (the jury room being just to the right of the judge's seat), but stood outside. I had inadvertently fixed the minimum penalty at one year, and the foreman called my attention to the matter, which error was corrected. This was not done in the jury room, but in the district court room, at the door, while defendant was present and court in session."
This qualification was not challenged at the time by any exception, and must govern this court in estimating the bill. Under the law, the minimum penalty for the offense charged was confinement in the penitentiary for a period of two years. According to the qualification, the foreman of the jury called this to the attention of the judge, and the judge, in the court room and in the presence of the appellant, corrected the error in the charge. If the correction had been made verbally, if the judge had entered the jury room and conversed with the jurors, or if the correction had been made in the absence of the appellant, a different case would be presented. Confined, as this court is, to the bill as qualified, we are unable to perceive that the conduct of the judge was violative of any of the statutes mentioned.
The motion for rehearing is overruled.
Overruled.